The lawyer who defended the strike of domestic workers in Europe: "Your discrimination is already in a sentence"

The lawyer who defended the strike of domestic workers in Europe: "Your discrimination is already in a sentence"

A historic sentence, which can open the door to the right to unemployment for almost 400,000 women in Spain, and which has been reached almost by chance. Thanks to the confluence of a domestic worker, an employer and a lawyer with a special empathy for the situation of domestic workers. "I saw the opportunity", affirms Javier de Cominges, of Vento Abogados.

The labor lawyer advised Mariana, a domestic worker in Galicia, against Social Security for denying her the possibility of contributing to have unemployment and both have achieved a milestone in the world of law: European justice has knocked down the arguments of the Spanish State to deny unemployment protection for this group of women, since involves indirect discrimination based on gender.

The days before the judicial resolution did not close an eye, they say in the firm. The day before, De Cominges conveyed his nerves to, given that almost half a million women looked to Luxemburg with their hopes pinned on Mariana's case. On Thursday, February 24, 2022, they won.

How did you receive the judgment of the Court of Justice of the EU?

Happy, because the court also uses some important expressions, such as "social helplessness" that generates them not having unemployment. It is true that it refers to the trial magistrate to be the one who finally decides, but it narrows the issue down to discrimination.

What was the origin of this case, of the complaint of this worker that ends up in the CJEU?

I had a special sensitivity for the subject. I am an associate professor at the University of Vigo, where I teach the subject of 'Equality and the Labor Market', and it seemed to me that a group was suffering discrimination that had no justification. So, it just so happened that I met a domestic worker who was very concerned about the lack of unemployment protection.

The woman was working, but she was afraid that when she reached a certain age, she would lose her job and suddenly find herself in her 50s without specific training or unemployment rights. She also does not apply to other associated subsidies, such as that for the unemployed over 52 years of age. She was happy in the house where she worked, but she thought about changing her profession because she saw her future as very dark. Mixing one thing and another, demand arose.

It is not easy for domestic workers to denounce, for money and other reasons of vulnerability, they highlighted these days in the groups of employees.

There are several reasons, such as the economic potential of getting you into legal proceedings. This case is pro bono, that is to say, I did not charge the worker anything because of the social importance that it seemed to me that she had in demand. If she had charged him what the work implied on time, for more than two years, plus the trips to Luxembourg and others, no domestic worker would have been able to pay it. It would have had to be a union, a group or a melancholic like me (laughs).

How did they file the complaint?

With a letter in Social Security. As the worker was not fired, what we demanded was to be able to contribute unemployment. Her employer supported her, she was willing to contribute because she thought it was bloody that she did not have the right to unemployment. So we presented a letter from both saying that they wanted to contribute as an employer and as an employee. The funny thing is that she was called on the phone before responding in writing.

What did they tell you at Social Security?

They called her to tell her that they had presented "something absurd", that they did not know who would have advised them, but that she was not entitled to unemployment. As if it was a mistake. I told him to ask for the answer in writing. They replied with her negative and that gave us the opportunity to file the lawsuit.

Did they want to take the case to European authorities from the beginning?

In the demand I put in a point that I considered that the Spanish law was very clear, there was no doubt that they did not have the right to unemployment, but that I understood that it violated a European directive on equality. I argued it a lot and at the oral hearing I insisted on it.

Then the judge has to do his job. He accepted the argument that there could be such a violation of some fundamental right and he is the one who raises the question for a preliminary ruling to the CJEU.

When the judge raises the question for a preliminary ruling, do they already get the idea of ​​the repercussion that the case may have?

From that moment we were fully aware, not so much of the media impact of the case, but of the social one. That it could affect half a million people, this was also a fundamental part of the approach to the lawsuit. Not only did she want to improve the circumstances of this worker, but from the beginning she was thinking about the collective.

Did you feel a lot of responsibility? How have you experienced it?

Not at first, because it was a legal, mental construction, and I thought that at any stage my feet were going to be stopped. For example, if the judge had not wanted to raise the question for a preliminary ruling, the matter would have ended there. Because we cannot go directly to the CJEU. I can argue it and ask the magistrate, but if I hadn't wanted to, we would have stayed there. Then they could also have inadmitted it for processing or that the CJEU had not gone to the bottom of the matter, as requested by the State.

Little by little the obstacles were overcome and suddenly I saw myself to catch the plane to Luxembourg. I was surprised, even though it was our goal. We had made it to the end.

And the time has come to confront the Spanish State and the Administration.

Before the oral hearing, there is a process of written arguments, where I showed my arguments and the State, theirs. The oral hearing is not mandatory and, in fact, they ask that it not be requested if it is not necessary. It is only done if requested by one of the parties and the court also has to admit it.

I was the only one who asked for the oral hearing. He considered that it was necessary to be able to counter some issues before the court, which did not have any Spanish member, in order to explain well what our Social Security system was like and refute the Administration's allegations that were nuanced. And so it was in the end, we met at the hearing, in the Great Courtroom, so solemn. On the one hand, I was alone and, on the other, two lawyers from the State and two other lawyers from the General Treasury of Social Security.

Did Mariana come to the sight?

No, they are public, but she has always remained quite on the sidelines, waiting for the result of the procedure. Also in the media.

What did you think when you received the favorable conclusions of the EU Advocate General already in September?

It was the first time I was convinced that it was possible to win. You always have the doubt of whether they will appreciate it or not, if you are defending something that you see, but that perhaps does not make sense... But, when suddenly I see that I am making an argument and that the attorney general assumes as his own some arguments, I said: 'Hey, maybe I'm not so wrong'.

How has it been when you have seen the sentence that leans towards the existence of discrimination?

we first saw the news, which seemed positive and gave us some peace of mind, but with the nuance that we had to see the text of the sentence. What did he put and how did he substantiate it?

As I was reading it, the feeling was logically positive. For example, how she pointed out that there was no singularity of this regime compared to others that could justify not recognizing their unemployment. Also how he was limiting the discrimination, facing the decision of the trial magistrate, even mentioning that situation of "helplessness", which is a word very loaded with content.

Several domestic workers thanked Mariana for her "courage" in denouncing and they emphasized that in the end it had to be justice that recognized this discrimination, despite their many years of struggle. Why do you think this situation has dragged on for so long?

This is a very specific group, which is not of interest to the unions, which usually has financial difficulties, lacks knowledge of the regulations themselves, of their options... In addition, many times they are not organized, nor do they have support groups, as it is a very individual job, which takes place inside homes.

But I think that the most significant thing is that it has been a profession forgotten by powerful groups. In the 2011 decree there was an additional provision that said that in a month a commission would be created with unions and companies that would later make a report to see the specific circumstances of the employees in this sector and promote an unemployment benefit. That was taking, taking and taking until… how long have we been?

More than nine years.

What union or business association, if interested in a basic benefit, was going to delay it nine years? I speak both of the Government, of the political sign that it is because several have passed, as well as of the business associations themselves and of the most representative unions. Nobody cared.

He told us a few days before the sentence that, if it was positive, it would have been worthwhile to have dedicated himself to law.

In the legal world we are used to interpreting the Law and, even, sometimes to make its interpretation more flexible to adapt it to the current social reality. But it is another thing to say that a norm goes against other superior ones and to propose, not to make it more flexible, but rather that it cannot be applied because it is unfair. I think it is one of the most important things that can be done in this profession. Or at least a very nice part.

Regarding what is going to happen now, what do you expect from the Government after this ruling?

You would have to ask the government. Once the sentence has been reviewed, they can try to avoid it, as they have done with others, but the problem is already in front of them. It is no longer hidden, it appears in a sentence and from a court of this caliber.

In order to generate legal certainty, and prevent this from developing at the stroke of lawsuits that may be filed, there can be no more thinking about it: they would have to regulate how access to unemployment benefit and contributions will be.

Do you think that a lot of litigation will be generated after the recognition of discrimination against the group?

It may be an effect of the sentence. Because, what happens to domestic workers who are now unemployed or are already in that situation and who have not contributed to unemployment? Now it has been considered that the system is discriminatory and they have not contributed because they were not allowed. That is where litigation can arise.

That could be regulated by the State, but they are not going to want to because it is an economic cost for Social Security and, in fact, the refusal to apply for unemployment all these years is because they saw that it was going to be more expensive than the money they were going to enter in quotes. That's the bottom line of this.

Collectives of domestic workers said this Thursday: "The CJEU has proved us right." Do you think that the sentence legitimizes the struggle of these women ignored for so many years?

Of course. I've been doing this for two or three years, but they've been around forever. The supplement against the gender gap in pensions was recently reformed, and in December the pension reform was approved with the modification of the widow's pension for de facto couples. A domestic worker told me: there have been many opportunities to reform the Social Security law and they have kept us forgotten.

Like the Kellys, although with other claims, the domestic workers also marked a before and after in claiming their rights. Several women's groups began to organize themselves until they found a pressure mechanism: the media. With more value even for the situations that they live in many cases. What I have done is an anecdote in comparison.

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